Kassman v Tkatchenko [2023] PGNC 79; N10213 (28 April 2023)

N10213

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 30 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
PORT MORESBY SOUTH OPEN ELECTORATE

CHARLES KASSMAN
Petitioner

V

JUSTIN TKATCHENKO
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Narokobi J
2023: 27^th February, 28^th April

ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, grounds of a petition, whether petition adequately pleads grounds, s 208 (requisites of petition) – s 208(a): whether facts relied on to invalidate the election adequately pleaded, filing of election petition, whether petition filed within time, s 208 (requisites of petition) – s 208(e): whether petition filed in time.

The Petitioner challenges the First Respondent declaration as the elected member for Port Moresby South open electorate in the National Capital District. The Respondents object to the Petition for being incompetent on the basis that it does not adequately plead the facts relied on and the petition was filed past the 40 days requirement.

Held:

(1) The allegation of bribery in the Petition, is adequately pleaded for purposes of s 208(a) of the Organic Law, taking into consideration the requirements of s 217 of the Organic Law and the recent Supreme Court case of Hagahuno v Tuke (2020) SC2018.

(2) In order for a petition to be considered as being filed, the complete petition must be filed in time. When it comes to filing, it is either filed on time or out of time. There is no room to read substantial compliance when it comes to complying with the filing of the petition. The requirements of s 208(e) of the Organic Law is mandatory and non-compliance is fatal to the Petition (adopting the opinion of Deputy Chief Justice in Hagahuno v Tuke (2020) SC2018 at para 68).

(3) The Petition is accordingly dismissed for non-compliance with s 208(e) of the Organic Law with appropriate orders for costs.

Cases Cited

The following cases are cited in the judgment:

Hagahuno v Tuke (2020) SC2018
Joel Paua v Robert Nagle [1992] PNGLR 563
Samuel v Morauta (2018) N7098

Counsel

R Diweni, for the Petitioner
C Copeland, for the First Respondent
S Kapi, for the Second Respondent

RULING

28^th April, 2023

1. NAROKOBI J: Charles Kassman (“the Petitioner”) challenges the election results of the Moresby South Open electorate in the 2022 National General Elections (“the Petition”). The Petition was filed on 7 September 2022. The Petitioner names Honourable Justin Tkatchenko, Member of Parliament (MP) as the First Respondent (“First Respondent”) and the Electoral Commission as the Second Respondent (“Second Respondent”). Honourable Justin Tkatchenko was declared as the Member for Port Moresby South Open on 28 July 2022. Each of the Respondents have filed Objections to Competency. The First Respondent filed their Objection to Competency on 21 September 2022, and the Second Respondent also filed their Objection to Competency on 21 September 2022. I heard both Objection to Competency on 27 February 2023, and reserved to today for my ruling on the objection.
   

The Petition

2. The Petition raises the grounds of bribery against the First Respondent.
   

Respondent’s Objection to Competency

3. Both Respondents relies on similar grounds of objection – the first ground relates to s 208(a) of the Organic Law on National and Local Level Government Elections (hereafter Organic Law) in that the Petition does not adequately plead the facts relied on.
   
4. The second ground relates to non-compliance with s 208(e) of the Organic Law, in that the Petition was filed outside of the 40 days requirements.
   

The Law

5. Sections 208, 209, 210 and 212 the Organic Law govern the way an election petition is to be prepared and brought before the court of disputed returns. These provisions will be referred to during the judgment.
   
6. Section 217 of the Organic Law is also an important provision as it guides the court in how it should consider an election petition.
   
7. Other relevant provisions concerning an election petition are s 215 and s 218 of the Organic Law.
   
8. Section 208 of the Organic Law provides:
   

208. Requisites of petition.

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

9. Section 210 of the Organic Law then makes it mandatory for an election petition to comply with s 208 and s 209 of the Organic Law:
   

210. No proceedings unless requisites complied with.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

10. Importantly, s 217 then provides:
    

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

11. Much of the arguments center around the effects on election petitions by Hagahuno v Tuke (2020) SC2018. That case deals mainly with s 217 of the Organic Law. I have read the case, and I highlight the proposition that in my view is seminal as to how a court should consider an election petition (from the headnotes):
    
    • In deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s 217 of the Organic Law, which dictates that the National Court “shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
      

Issues

12. From hearing the parties, and reading their submissions, it is not in contention that there are two issues for me to determine:
    
    • Whether the Petition sufficiently pleads material facts for purposes of s 208(a) of the Organic Law?
    • Whether the Petition was filed within 40 days consistent with s 208(e) of the Organic Law?
      
13. Resolving any one of these issues in favour of the Respondents will have the result of terminating the Petition.
    

Submissions

14. Both Respondents submits that the allegation of bribery is inadequately pleaded.
    
15. The First Respondent submits on the first issue that the Petition pleads bribery with knowledge and authority of the First Respondent. The Petition should be pleaded pursuant to s 215(3)(a) of the Organic Law. Under that provision the requirements are that the petition must plead facts establishing that someone bribed an elector with knowledge or authority of the First Respondent. There are no facts pleaded to show how the First Respondent authorized Rose Paul, Geelong Auma and Mark Wavik to offer bribe.
    
16. For the first issue, the Second Respondent submits that the pleadings should be coherent, succinct and precise so as to enable the Respondents to prepare their case for trial. The Second Respondents relies on the case of Joel Paua v Robert Nagle [1992] PNGLR 563 which offered the view that the court cannot merely draw conclusions or infer possible situations and assume that there may be possibility of errors or omissions or illegal practices.
    
17. In response, on the first issue the Petitioner submits that the Petition sufficiently identify the ground of bribery and or undue influence. He submits that the objection raised by the First Respondent are highly technical arguments and should not be upheld in the spirit of s 217 of the Organic Law and the authoritative case of Hagahuno. He submits that the Second Respondent does not point out what particular facts are lacking that should terminate the Petition.
    
18. On the second issue the First Respondent submits that the Petition was filed on 7 September 2022. This is one day outside of the 40 days required by s 208(e) of the Organic Law. He says that Hagahuno expressed the view that the first day to be counted, is the day after the declaration. This would mean that 40 days expired on 6 September 2022. Relying on the affidavit of Mellie Muga, the First Respondent submits that some pages of the Petition were uploaded on 6 September 2022 and the rest on 7 September 2022.
    
19. The Second Respondent takes the view that the 40 days commences from the time of declaration. This would mean that the 40 days expired on 6 September 2022. No authority for this proposition is cited.
    
20. The Petitioner submits that the Petition was filed on 6 September 2022. He relies on the affidavit of Ralph Diweni that discloses an email exchange with Mathew Bae, and officer of the National Court Registry who states that the Petition was filed on 6 September 2022.
    

Considerations

21. I address both issues together in my consideration of the issues, but at the conclusion answer each of the issue raised specifically and then deal with the grounds of the Petition.
    
22. On the first issue of whether the Petition has been adequately pleaded, I uphold the submissions of the Petitioner that the Petition should be considered in light of s 217 of the Organic Law and the court should be guided by substantial merits and good conscience to do justice in the particular case. Although it would have been desirable for the Petitioner to state when, where and how the First Respondent authorized Rose Paul, Geelong Auma and Mark Wavik to offer bribe, the pleading, “known close associate,” raises evidentiary questions of how they obtained the money allegedly used to bribe the voters. This is a question Rose Paul, Geelong Auma and Mark Wavik will obviously have to be summoned to provide evidence in a proper trial.
    
23. In my view it will also mean that the First Respondent in a trial would be asked questions relating to whether he knew these persons, whether he gave them money for the alleged actions of bribery. These are trial issues. My position is fortified by s 217 and a generous reading of Hagahuno.
    
24. Taking this position, I will dismiss the ground of objection to competency that relates to the adequacy of the pleadings.
    
25. On the objection that the Petition was filed a day late, I uphold the position in law as established by Hagahuno that the first day in the 40-day period in s 208(e) of the Organic Law is the day after the declaration of the incoming Member of Parliament. This would mean that the last day to for the Petitioner to file the Petition would be 6 September 2022. The Petitioner and the First Respondent accepts this. I reject the contention of the Second Respondent for the reason that it cites no authority to advance this proposition.
    
26. The important question is, was the Petition filed on 6 September 2022 or 7 September 2022? From the evidence of Mellie Muga, it is clear that parts of the Petition were uploaded on 6 September 2022 and the rest on 7 September 2022. This fact is not seriously contested by the Petitioner, who says that there was substantial compliance by the Petitioner given that he lodged most of the documents before 7 September 2022.
    
27. In my view, the appropriate thing to do, is to look at the actual date on the Petition. The date affixed on the Petition is the date the court should accept. This is the same means by which dates are reckoned in other court procedures. To depart from this time accepted practice would cause confusion and inconsistency. I am not at liberty to interfere with the work of the Registry and its practices as to the affixing of dates.
    
28. Turning to the Petition, it bears the date of 7 September 2022. This means that the Petition was filed a day late. Application of s 217 of the Organic Law cannot save this anomaly. This is clear from the Hagahuno where Deputy Chief Justice Kandakasi stated at paragraph 68:
    

An incurable defect, error or omission in an election petition could be a complete failure to:

(a) Disclose by a statement of the facts (regardless of however poorly or well drafted the petition might be) at least a known ground for invalidating an election or return; or

(b) State the occupation of the attesting witnesses as was the case in Biri v Ninkama; or

(c) State both or either of the required two attesting witnesses’ address;

(d) Specify the relief sought; or

(e) Sign the petition by the petitioner; or

(f) File the petition within 40 days after declaration of the relevant results.

29. I am reminded of Cannings J comments in Samuel v Morauta (2018) N7098 that is, “A Curate’s Egg approach (‘parts of this rotten egg are excellent’) is not permissible.” This is a matter where substantial compliance will not suffice. It is an incurable defect, and therefore the submission that there was substantial compliance cannot in good conscience save the Petition. The Petition cannot stand as it was filed outside of the 40 days requirement.
    

Conclusion

30. On the first issue I find that the Petitioner has adequately pleaded relevant facts to meet the requirements of s 208(a) of the Organic Law.
    
31. On the second issue I find that the Petitioner has filed his Petition a day outside of the 40 days requirement of s 208(e) of the Organic Law.
    
32. Given this and taking into consideration s 210 of the Organic Law, I order that the petition should be dismissed with appropriate orders for costs.
    

Costs

33. On the question of costs, the Petitioner has succeeded in overcoming the ground of objection as relates to adequacy of pleadings. On the second ground, there appears to have been some issues with legal representation and attempts to file the Petition within time, so costs will be limited to the K5,000 deposit which shall be shared equally between the First and Second Respondents.
    

Orders

34. I make the following orders on account of the foregoing:
    

(1) The First and Second Respondents’ objections to the competency of the Petition is upheld on the ground that the Petition was filed outside of the 40 days requirements under s 208(e) of the Organic Law and the Petition is dismissed in its entirety.

(2) The Petitioner shall pay the Respondent’s costs of the objections to competency, limited to the K5,000 deposit which shall be shared equally between the Respondents.

(3) Time for the entry of the orders is abridged.

Judgement and Orders accordingly.
____________________________________________________________
Diwenis Lawyers: Lawyers for the Petitioner
Simpson Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent